Unsubstantiated Claim
In the Open Standard
Rajeev KumarMember for 23 years 5 months
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Hi friends,
I have a situation here. Project Duration from Aug’03 to Feb’05. Clause 14 program submitted and appproved in Nov’03. The clause 14 program does not have much details, and has very long activities some spanning to 6-7 months.
Now the contractor has submitted a claim regarding a delay in issue of some kind of No objection Certificate, supported with letters and documents.The delay seems to be genuine and also a program showing the delay he encountered because of the late issue of the NOC. He just picks some related activity from the Clause 14 program and puts the new issue date on the bar and there goes the subsequent activity( an activity if duration 180 days), outside the contractual completion date.
my questions are:
1)How can I counter their arguement? Can I ask them to show the critical path within that long activity?
2)Will I Have to look for some other reasons because the Clause 14 Program was already been approved?
3) Or should I tell them, delays will be assessed on an actual basis and not necessarily as blindly shown on the Program?
Any help will be appreciated. Thanks for listening too.
Regards
I have a situation here. Project Duration from Aug’03 to Feb’05. Clause 14 program submitted and appproved in Nov’03. The clause 14 program does not have much details, and has very long activities some spanning to 6-7 months.
Now the contractor has submitted a claim regarding a delay in issue of some kind of No objection Certificate, supported with letters and documents.The delay seems to be genuine and also a program showing the delay he encountered because of the late issue of the NOC. He just picks some related activity from the Clause 14 program and puts the new issue date on the bar and there goes the subsequent activity( an activity if duration 180 days), outside the contractual completion date.
my questions are:
1)How can I counter their arguement? Can I ask them to show the critical path within that long activity?
2)Will I Have to look for some other reasons because the Clause 14 Program was already been approved?
3) Or should I tell them, delays will be assessed on an actual basis and not necessarily as blindly shown on the Program?
Any help will be appreciated. Thanks for listening too.
Regards
5 replies
Oldest first- 0Forum Guest ·Given the nature of the programme and the length of the bars, it is unlikely that the whole duration is critical. I would suggest that you seek clarification from them as to the critical effect of the delay claimed, i.e. they give you further detail of the critical path so you can establish if this event really does effect the Completion Date. So in response to point 1) I would say you do need more detail otherwise the delay effect may be completely unrealistic.
As to 2), just because the programme was accepted does not obviuate the Claimant’s obligation to prove its case.
As to 3) Delays could be assessed on a number of bases. As the work proceeds on a Time Impact basis. I.e. using an updated programme, what is the assessed delay effect of the event. Alternatively if the event has already passed into history it would probably be worth calculating it on an actual time basis as this could be supported by actual project records.
Hope this is of some use. - 0Rajeev Kumar ·Thanks for your response.It is really helpful. Just a quick query on the last point as to that the delays could be assessed on an actual basis : that would bring up two cases - one, the contractor trying to do the work at a duration more than the programmed duration(shown on the Clause 14) and two, doing the work at a lesser duration. In case one, they would claim for a delay. In case 2, they would claim for an acceleration. Is this a lose/lose situation?. If then I will have to concentrate on the the first point itself, asking them to substantiate the critical delay.
What do you say?
Thanks for your support once again. - 0Roger Gibson ·If the contractor took longer than shown on the clause 14 programme for that activity, then it may be as a consequence of the delay event, e.g. his original planned resources were not immediately available when he could do the work. However, if this is his claim - then ask him to fully substantiate why he took longer than originally planned.
If he did it in less time, then its possible his original programme time was wrong. Again, ask him to substantiate this.
In any assessments of eot; it has to be ’fair and reasonable’. Not solely based on a programme analysis but taking into account other factors, like did the contractor act promptly and dilligently when the delay event item was released, and had he taken mitigation measures whilst the delay event was occurring (change of sequence, etc), and not just letting it happen as it was his ’get out of jail card’. - 0Jonathan Bowcott ·In situation 1, the Contractor must demonstrate why he took longer. Much of this depends on a suitable analysis based on the records that are available. If he is able to show on the basis of factual evidence that the delay was an Employer caused event, he may have entitlement to an EoT.
If he completes earlier, the position may be that he is merely being more productive through better management, working harder and more efficiently etc. This should not necessarily give rise to an acceleration claim as he may not actually have accelerated, (i.e. instigating additional measures to complete earlier than planned, for example through the use of additional resources, overtime etc). Although he has no acceleration claim he benefits through completing early, saving on time related costs and hence making the job more profitable.
Establishing the truth for delays should be based on facts, and those who keep the best records will be in the best position to prove their case on the balance of probabilities.
Hope this helps. - 0Shahzad Munawar ·Kumar
My answers to your questions are as under:
1)How can I counter their argument? Can I ask them to show the critical path within that long activity?
Yes, u may ask them to show the programme on CPM on longest path which is difficult job for Contractor if his EOT is based on assumptions.
2)Will I Have to look for some other reasons because the Clause 14 Program was already been approved?
You may ask the Contractor about the genuinety of delays with evidence. I am 100% sure that he will mostly be failed to provide you the evidence in most of his delays which he has been taken into account on assumptions and accordingly lost his entitlement for most of his claimed delays.
3) Or should I tell them, delays will be assessed on an actual basis and not necessarily as blindly shown on the Program?
Yes, you should assess the delays on actual basis keeping in view the whole scenario of the Project not rely on Contractor’s programme which is not factual. That is pen point where the Contractor may be failed to get his entitlement for most of delays.
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